noting that a criminal defendant who “takes the stand and testifies in his own defense . . . may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination”
How later courts described this case
- noting that a criminal defendant who “takes the stand and testifies in his own defense . . . may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination”
- “a witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHEL E. YANNI,
CASE NO. 2:21-CV-4172
Petitioner, Chief Judge Algenon L. Marbley
Magistrate Judge Chelsey M. Vascura
v.
WARDEN, OHIO DEPARTMENT
OF REHABILITATION AND CORRECTION,
CORECTIONAL RECEPTION CENTER,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)
and this Court’s General Order 22–05. Pending before the Court are the Petition and Petitioner’s
Memorandum in support of the same (Docs. 1, 2); Respondent’s Answer/Return of Writ (Doc.
7); Petitioner’s Reply (Doc. 10); and the state court record. For the reasons that follow, it is
RECOMMENDED that Petition be DENIED and that this action be DISMISSED.
I. PROCEDURAL HISTORY
The Court of Appeals for Ohio’s Fifth District summarized the relevant procedural
history of this case as follows:
{¶2} On November 8, 2018, the Muskingum County Grand Jury indicted appellant
on one count of trafficking in drugs (methamphetamine) in violation of R.C.
2925.03(A)(1), a felony of the first degree, and one count of permitting drug abuse
in violation of R.C. 2925.13(A), a felony of the fifth degree. The indictment also
contained a major drug offender specification. At his arraignment on November 14,
2018, appellant entered a plea of not guilty to the charges.
{¶3} Subsequently, a jury trial commenced on April 4, 2019. The following
testimony was adduced at trial.
{¶4} Detective Matt Wilhite of the Muskingum County Sheriff’s Office testified
that he was assigned to the Central Ohio Drug Enforcement Task Force. Wilhite
testified that a confidential informant (C.I.) gave him information about two targets
that he “could assist with during the investigation, and could buy pound quantities
of methamphetamine and possibly kilo quantities of cocaine.” Trial Transcript at
69. One of the targets was appellant. He testified that the C.I. informed law
enforcement that he could arrange to purchase eight to ten pounds of
methamphetamine from appellant in Muskingum County.
{¶5} On October 30, 2018, law enforcement and the C.I. arranged for a controlled
buy of narcotics from appellant. The C.I. was wired and provided with $4,500.00
in prerecorded cash. The C.I. met appellant in the Dollar General parking lot in
Gratiot, Ohio. There was testimony that the C.I. pulled in the parking spot next to
appellant and got into the front seat of appellant's vehicle. After a conversation
about money, the C.I. asked appellant “where it’s at” and appellant indicated that it
was in the trunk. Trial Transcript at 92. The C.I. then got into the trunk for a short
period of time, shut the trunk and then walked back over to appellant's vehicle and
said goodbye. The C.I. then got back into his own vehicle. Wilhite testified that he
observed that the C.I. had a large white object in his hand.
{¶6} Appellant then proceeded west on State Route 40. Wilhite testified that he
made contact with the C.I. and made sure that the transaction had been completed
and that he advised other detectives that appellant was heading west on State Route
40. He testified that he recovered the drugs from the C.I.’s vehicle in a plastic Wal-
Mart bag. Law enforcement initiated a traffic stop of appellant’s vehicle and located
the $4,500.00 in buy money in appellant’s vehicle. An undercover video of the
controlled buy was played at trial for the jury.
{¶7} After appellant was placed under arrest, DEA agents conducted a search of
his Columbus residence. Vacuum sealed bags, which are used to package drugs,
pay-owe sheets, which are ledgers used to keep track of money someone would
owe versus the amount of drugs sold, digital scales and three cell phones were
located. Detective Wilhite testified that these items were commonly used by drug
dealers to keep track of drug sales.
{¶8} Appellant testified at trial in his own defense. He testified that he began to sell
marijuana due to his financial issues and testified that the items recovered from the
search of his Columbus residence, including ledgers, were from his marijuana
selling business. He denied ever dealing methamphetamine. Appellant testified that
he was in business with the C.I. and that he would front the C.I. marijuana and the
C.I. would then repay him as it was sold.
{¶9} On cross-examination, appellant admitted to dealing drugs for a long time
. . . .
{¶38} At the conclusion of the evidence, appellee dismissed the permitting drug
abuse charge. During closing argument, appellee stated, in relevant part, that “[i]n
this case, [appellant] knew he was selling meth. It was his profession. Sells drugs,
sells meth, sells weed. Does this every day.” Trial Transcript at 396-397. The
prosecutor further argued as follows:
{¶39} You don't get at this level of the game without being very
smart, okay. And while some people think, oh, you know,
somebody's just dealing a little weed. When you are dealing in
hundreds of thousands of dollars in weed - - this is not like medical
marijuana. This is, I am a drug dealer. This is my profession.
Whatever commodity, drug dealing is the profession at that level.
{¶40} Trial Transcript at 406.
{¶41} At the conclusion of the evidence and the end of deliberations, the jury, on
April 5, 2019, found appellant guilty of trafficking in drugs (methamphetamine)
and the major drug offender specification. As memorialized in an Entry filed on
May 9, 2019, appellant was sentenced to eleven (11) years in prison and fined
$20,000.00.
State v. Yanni, No. CT2019-0050, 2020 WL 1686250, *1–2 (Ohio Ct. App. April 6, 2020).
Petitioner subsequently filed an appeal and raised the following three assignments of
error.
{¶43} “I. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
ELICIT TESTIMONY FROM APPELLANT REGARDING AN UNRELATED
PENDING CRIMINAL INDICTMENT IN FRANKLIN COUNTY, OHIO IN
VIOLATION OF APPELLANT’S RIGHTS AS GUARANTEED BY THE
FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATED
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.”
{¶44} “II. THE TRIAL COURT ERRED BY PERMITTING THE
INTRODUCTION OF UNFAIRLY PREJUDICIAL AND IRRELEVANT
EVIDENCE IN VIOLATION OF THE OHIO RULES OF EVIDENCE AND
APPELLANT'S RIGHTS AS GUARANTEED BY THE UNITED STATES AND
OHIO CONSTITUTIONS.”
{¶45} “III. THE PROSECUTOR’S REMARKS REGARDING APPELLANT'S
PENDING CRIMINAL INDICTMENT IN FRANKLIN COUNTY, OHIO
CONSTITUTED PROSECUTORIAL MISCONDUCT IN VIOLATION OF
APPELLANT'S RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE
SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
Id. at *3. On April 6, 2020, the state appellate court overruled all three assignments of error and
affirmed the state trial court’s judgment. Id. at *5, 6.
Petitioner sought an appeal in the Ohio Supreme Court. (Doc. 6, PageID # 191.) In his
Ohio Supreme Court filings, Petitioner raised one issue: “Defense counsel opening the door on a
particular issue does not deprive a defendant of his Fifth Amendment right to remain silent.”
(Id., PageID # 210, 214–18.) The Ohio Supreme Court declined to accept jurisdiction over
Petitioner’s appeal, however, on August 18, 2020. (Id., PageID # 228.)
On August 31, 2021, Petitioner, with the assistance of counsel, sought a writ of habeas
corpus pursuant to 28 U.S.C § 2254. (Doc. 1.) In his petition, he raises the following ground for
relief:
GROUND ONE: The trial court erred when it permitted inquiry by the State during
petitioner’s cross-examination of an unrelated pending criminal indictment in
violation of Petitioner’s Fifth and Fourteenth Amendment Rights.
(Id., PageID # 5.)
II. STANDARD OF REVIEW
The Sixth Circuit Court of Appeals recently discussed the appropriate standard of review
for habeas claims brought by state prisoners in Stermer v. Warren, 959 F.3d 704, 720–722 (6th
Cir. 2020). “Petitions for habeas corpus brought by state prisoners are subject to 28 U.S.C. §
2254, the modern version of which comes from the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”).” Id. at 720 (citing Northrop v. Trippett, 265 F.3d 372, 376 (6th Cir.
2001); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999)). “AEDPA requires habeas
petitioners to exhaust their claims in state court before turning to a federal court for
relief.” Id. (citing 28 U.S.C. § 2254(b)(1)). “And if a state court decides a claim on the merits,
that decision is subject to significant deference.” Id. (citations omitted).
“For a federal court to grant relief in such a case, the state court’s decision must have
been ‘(1) . . . contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States; or (2) . . . based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding.’” Id. at 720–721 (quoting 28 U.S.C. § 2254(d)). “Under these rules, a state court’s
determination that a claim lacks merit precludes federal habeas relief so long as fairminded
jurists could disagree on the correctness of the state court’s decision.” Id. at 721 (citations and
internal quotation marks omitted). “This deference applies even when the state court fails to
explain its reasoning, in which case ‘the federal court ‘must determine what arguments or
theories . . . could have supported the state court’s decision’” and afford those theories AEDPA
deference.” Id. (quoting Sexton v. Beaudreaux, ––– U.S. ––––, 138 S. Ct. 2555, 2558, 201
L.Ed.2d 986 (2018) (per curiam) (alteration in original) (quoting Harrington v. Richter, 562 U.S.
86, 102, (2011)). “Furthermore, ‘evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations.’” Id. (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
“Section 2254(d) also determines which facts a federal court can consider.” Id. “When
assessing whether the state court’s decision was contrary to, or involved an unreasonable
application of, clearly established Federal law,’ 28 U.S.C. § 2254(d)(1), the reviewing court ‘is
limited to the record that was before the state court that adjudicated the claims on the merits [.]’ ”
Id. (quoting Cullen v. Pinholster, 563 U.S. 170, 181, (2011)). “Because of this, a district court
cannot use a federal evidentiary hearing to supplement the record when assessing a claim under
§ 2254(d).” Id. (citing Keeling v. Warden, Lebanon Corr. Inst., 673 F.3d 452, 465 (6th Cir.
2012)). “That said, if a review of the state court record shows that additional fact-finding was
required under clearly established federal law or that the state court’s factual determination was
unreasonable, the requirements of § 2254(d) are satisfied and the federal court can review the
underlying claim on its merits.” Id. (citations omitted).
“If a habeas petitioner satisfies the heightened requirements of § 2254(d), or if the
petitioner’s claim was never ‘adjudicated on the merits’ by a state court, 28 U.S.C. § 2254(d),
AEDPA deference no longer applies.” Id. “Instead, the petitioner’s claim is reviewed de novo
as it would be on direct appeal.” Id. (citing Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.
2003)). “The district court would also be free to expand the record, provided that the petitioner
diligently attempted to present those facts in state court (or alternatively if [he] meets AEDPA’s
narrow exception for evidence of actual innocence).” Id. at 721–722 (citations omitted).
III. ANALYSIS
Petitioner asserts that he is entitled to habeas relief because the trial court allowed the
prosecution to cross examine him about an indictment in a different county for marijuana sales
even though his lawyer objected on Fifth Amendment grounds. Respondent urges that this claim
lacks merit. The undersigned agrees.
The Fifth Amendment provides that no person “shall be compelled in any criminal case
to be a witness against himself.” U.S. Const. amend. V. This provision guarantees a criminal
defendant the right to remain silent during his criminal trial and prevents the prosecution from
commenting on his silence when he exercises that right. See Griffin v. California, 380 U.S. 609,
614 (1965). A criminal defendant also has a concomitant right to testify in his own
defense. See Rock v. Arkansas, 483 U.S. 44, 52–53 (1987) (citing Harris v. New York, 401 U.S.
222, 230 (1971)). But once a defendant chooses to testify in his own defense, he cannot raise the
privilege against self-incrimination as a barrier against proper cross-examination.
See Brown v. United States, 356 U.S. 148, 154-55 (1958) (noting that a criminal defendant
who “takes the stand and testifies in his own defense . . . may be impeached and his testimony
assailed like that of any other witness, and the breadth of his waiver is determined by the scope
of relevant cross-examination”). Here, Petitioner appears to complain that the state appellate
court wrongly determined that the scope of the prosecution’s cross-examination questions was
proper.
The state appellate court began its analysis of Petitioner’s Fifth Amendment claim by
discussing Petitioner’s direct examination testimony about his marijuana dealing activities. The
state appellate court wrote as follows:
{¶47} Appellant, as is stated above, testified at trial in his own defense. Appellant
testified that he became involved in drug dealing after he was released from
incarceration after being convicted of bank fraud. He testified that he began dealing
marijuana due to financial problems and that he started out small, but it did not take
long for him to sell larger quantities. Appellant also admitted that the items
recovered from his residence were accounts of his marijuana business. Appellant
testified that the ledger taken by law enforcement was for a brand called “Blue
Dream” which was a high-grade marijuana. Trial Transcript at 330. Appellant,
when asked, denied ever dealing methamphetamines and testified that he and the
C.I. started engaging in marijuana trafficking together and were partners.
According to appellant, he would front the C.I. the marijuana and the C.I. would
repay appellant as he sold the same.
{¶48} Appellant stated that days before his arrest, he supplied the C.I. with six
pounds of high grade marijuana worth $3,000.00 a pound, for a total of $18,000.00
. . . , the following is an excerpt from appellant’s trial testimony:
{¶49} [PETITIONER]: When I receive my product they’re always,
always going to be in a bag that’s placed in another bag, both bags
are sealed; the first bag being sealed, and the second bag being
sealed. To open that bag, I have to cut open the top of the bag to get
to the original bag. And as you can see on this particular one - -
{¶50} [DEFENSE COUNSEL]: Which one, sir?
{¶51} [PETITIONER]: This one with the writing on it. There’s
letter on here, SF OG. OG is a brand of high-grade marijuana. SF is
a - - it’s almost like - - like you have Land Rover and then Range
Rover, the make and the model. The make - - or the - - yeah, the
make is the OG, the model is the SF. And this is where - - this is - -
{¶52} [DEFENSE COUNSEL]: So that’s - -
{¶53} [PETITIONER]: - - exactly what that is.
{¶54} [DEFENSE COUNSEL]: - - that’s a marijuana designation;
correct?
{¶55} [PETITIONER]: Yes. Yes.
{¶56} [DEFENSE COUNSEL]: Do these have anything to do with
crystal methamphetamine?
{¶57} [PETITIONER]: Absolutely not.
{¶58} Trial Transcript at 335.
Yanni, 2020 WL 1686250, at *3–4.
The state appellate court next discussed the prosecution’s cross-examination of
Petitioner, including questions posed by the prosecution about Petitioner’s possession of
marijuana that had led to an indictment against him in another county for marijuana dealing and
to which Petitioner’s lawyer objected on relevancy and Fifth Amendment grounds. The state
appellate court wrote:
{¶59} After appellant testified, the following testimony was elicited on cross-
examination:
{¶60} [THE PROSECUTION]: So you’ve been dealing drugs for a
long time?
{¶61} [PETITIONER]: Yes.
{¶62} [THE PROSECUTION]: At least since you got out of prison
on the bank fraud?
{¶63} [PETITIONER]: Yes.
{¶64} [THE PROSECUTION]: You want these people to believe
you’re just a weed dealer; right?
{¶65} [PETITIONER]: Absolutely, because it’s the truth.
{¶66} [THE PROSECUTION]: Okay. Now, in 2016, you got caught
in Columbus with 100 pounds of weed; right?
{¶67} [PETITIONER]: Yes, I did.
{¶68} [THE PROSECUTION]: And you were a fugitive since then?
{¶69} [PETITIONER]: Yes, yes. I have –
{¶70} [THE PROSECUTION]: Now, was that good weed, or was
that ditch weed?
{¶71} [DEFENSE COUNSEL]: Object; relevancy, Your Honor.
{¶72} THE COURT: Overruled. It’s cross-examination.
{¶73} [THE PROSECUTION]: Was it good weed, or was it just - -
{¶74} [PETITIONER]: The hundred pounds that I was caught with
was what you call a middle-grade weed. It’s between - -
{¶75} [DEFENSE COUNSEL]: Your Honor, again, I'm just going
to object. He has a Fifth Amendment right. That case is pending.
And I’m just going to put on the record - -
{¶76} THE COURT: I had no idea this case was pending.
{¶77} [DEFENSE COUNSEL]: Oh. Well, that was part of the
question. But it is pending, he does have a Fifth Amendment right.
I still don’t see the relevancy of that indictment to this case. But just
want to make the record clear.
{¶78} THE COURT: Overruled. Go ahead.
{¶79} [THE PROSECUTION]: You said it was mid-grade weed?
{¶80} [PETITIONER]: Yes.
{¶81} [THE PROSECUTION]: So, generally, you spoke about this
high-grade weed being worth $3,000 a pound.
{¶82} [PETITIONER]: Yes.
{¶83} [THE PROSECUTION]: So if it was high-grade weed, that
would be $300,000 worth of weed. At the border, directly from
cartel, brick-packed, Mexican ditch weed is $300 a pound; right?
{¶84} [PETITIONER]: No.
{¶85} [THE PROSECUTION]: I mean, that’s - - that’s pound for
the cheapest dirt weed you can get, from the best price you can get.
{¶86} [PETITIONER]: Well, unfortunately, I don’t know about the
dirt weed because I don’t deal with the dirt weed. As far as
marijuana, I deal with mid grade up to high grade and that's it.
{¶87} [THE PROSECUTION]: Okay. So you get caught with, what,
$100,000 worth of weed?
{¶88} [PETITIONER]: Yes. Approximately.
{¶89} Trial Transcript at 360–362.
Id. at *4.
The state appellate court then described and evaluated Petitioner’s Fifth Amendment
claim. It wrote:
{¶90} Appellant now contends that the trial court erred by allowing the State to
elicit testimony on cross-examination from appellant regarding his unrelated
pending criminal indictment in Franklin County, Ohio. We note that appellant’s
counsel objected to such questioning, arguing that it was irrelevant and that
appellant had a Fifth Amendment right against self-incrimination.
{¶91} We note, however, that trial counsel never instructed appellant not to answer
and that appellant never asserted his Fifth Amendment right against self-
incrimination. Moreover, appellant, via his own testimony that he was a small time
drug dealer, opened the door to questioning about his drug trafficking. As noted by
appellee, appellant “cannot voluntarily testify in great detail on direct examination
about marijuana trafficking and then attempt to limit the State’s questioning as to
the exact same matter.” Furthermore, assuming, arguendo, that it was error to allow
such evidence, we cannot say that appellant was prejudiced in any manner based
on the evidence regarding the buy made by the C.I. and that fact that appellant
admitted being a drug dealer. There was overwhelming evidence of appellant’s
guilt and any error was harmless beyond a reasonable doubt.
{¶92} Appellant’s first and second assignments of error are, therefore, overruled.
Id. at *4–5. (emphasis added)
As the discussion above illustrates, the state appellate court determined that Petitioner
testified on direct examination that he was a small-time marijuana dealer. Id. at * 4. The
undersigned finds that is an accurate assessment of Petitioner’s direct examination testimony.
Petitioner testified during his direct examination that he started out as a seller of small quantities
of marijuana, but before too long, began selling more than small quantities of that substance.
(Doc. 6, PageID # 234.) During direct, Petitioner also identified items recovered from his
residence as ones that had used to keep “accounts” of his marijuana business, including sales of a
high-grade type of marijuana called Blue Dream. (Id., at PageID # 235.) Petitioner further
testified on direct examination that those account-keeping items included references to a
confidential informant and that his phone records would reflect calls between him and that
confidential informant but that he and the confidential informants did not deal in
methamphetamines together. (Id., at PageID # 235–36.) Petitioner additionally testified on
direct examination that he and the confidential informant were business partners that engaged in
marijuana trafficking. (Id., at PageID # 237.) Petitioner indicated on direct examination that on
more than one occasion, he had “fronted” marijuana to the confidential informant, and the
confidential informant repaid Petitioner for the marijuana that had been fronted to him as the
confidential informant sold it. (Id., at PageID # 237–38.) Based on this direct examination
testimony, the state appellate court determined that Petitioner had “opened the door” (i.e.,
waived his Fifth Amendment privilege) to questions on cross-examination about the scope and
details of his marijuana trafficking, including the prosecution’s questions about Petitioner’s
possession of marijuana that had led to an indictment in a different county. Yanni, 2020 WL
1686250, at *4.
Petitioner urges that the cross-examination questions were impermissible because even
though he testified on direct examination about his marijuana sales and his relationship with the
confidential informant, he never testified on direct examination about any pending criminal
charges. (Doc. 2, PageID # 22.) As the United States Supreme Court has explained, however,
once a defendant decides to testify, “[t]he interest of the other party and regard for the function
of courts of justice to ascertain the truth become relevant, and prevail in the balance of
considerations determining scope and limits of the privilege against self-incrimination.” Brown,
356 U.S. at 156)). Indeed, a criminal defendant “has no right to set forth to the jury all the facts
which tend in his favor without laying himself open to a cross-examination upon those facts.”
Id. (quoting Fitzpatrick v. United States, 178 U.S. 304, 315 (1900)). See also, Mitchell v. United
States, 526 U.S. 314, 321 (1999) (citing Rogers v. United States, 340 U.S. 367, 373 (1951) (“a
witness, in a single proceeding, may not testify voluntarily about a subject and then invoke the
privilege against self-incrimination when questioned about the details.”)) For that reason, “[A]
defendant who takes the stand in his own behalf cannot then claim the privilege against cross-
examination on matters reasonably related to the subject matter of his direct examination.”
McGautha v. California, 402 U.S. 183, 215 (1971), overruled on other grounds, Furman v.
Georgia, 408 U.S. 238, 247 (1972).
Given these precepts, the undersigned finds that it was reasonable for the state appellate
court to conclude that the prosecution’s cross-examination questions were reasonably related to
Petitioner’s direct examination testimony that he trafficked in marijuana. Petitioner testified at
length on direct examination about selling marijuana. The prosecution’s cross-examination
questions were directly related to the amount, quality, and street value of marijuana that
Petitioner had possessed and dealt. The prosecution’s questions never strayed from the subject
of Petitioner’s testimony about his marijuana dealing. Accordingly, it was reasonable for the
state appellate court to find that by testifying about selling marijuana, the scope of Petitioner’s
waiver of his right against self-incrimination extended to these marijuana dealing-related
questions.
In his Reply, Petitioner also appears to assert that the state appellate court erred by
finding that he waived his Fifth Amendment right because counsel objected to the prosecution’s
questions, and that his counsel was unable to raise a Fifth Amendment self-incrimination
objection on Petitioner’s behalf. (ECF No. 10, PageID # 310–14.) In support, Petitioner cites
several cases, including a Fifth Circuit case that was subsequently overruled by the Supreme
Court in Fisher v. United States, which determined that taxpayers’ Fifth Amendment privilege
would not be violated by enforcement of a summons for the production of documents possessed
by the taxpayers’ accountants/lawyers. (Id., at PageID # 310) (citing United States v. Kasmir,
499 F.2d 444 (5th Cir. 1974), overruled by Fisher v. United States, 425 U.S. 391, 396–97
(1976)).
The undersigned is not convinced, however, that the state appellate court affirmed the
state trial court because it determined that counsel was unable to raise a Fifth Amendment
objection on Petitioner’s behalf. As the excerpt above demonstrates, the state appellate court
expressly noted that Petitioner’s “counsel objected to such questioning, arguing that it was
irrelevant and that appellant had a Fifth Amendment right against self-incrimination.” Yanni,
2020 WL 1686250, at *4. The state appellate court then noted that counsel failed to instruct
Petitioner not to answer the questions, and that Petitioner did not assert the Fifth Amendment.
Id. But the state appellate court then went on to find that “[Petitioner], via his own testimony
that he was a small time drug dealer, opened the door to questioning about his drug trafficking.”
Id. The undersigned finds that this was the state appellate court’s crucial determination. And as
already explained, it was a reasonable one.
In short, because Petitioner testified on direct examination about selling marijuana, the
state appellate court determined that Petitioner opened the door to cross-examination questions
about Petitioner’s possession and sales of marijuana, including questions about possession and
sales of marijuana that had led to an indictment elsewhere. That determination was not contrary
to Supreme Court precedent, an unreasonable application of federal law, or an unreasonable
determination of facts. Habeas relief is not warranted for Petitioner’s Fifth Amendment claim.
IV. DISPOSITION
For the foregoing reasons, the undersigned RECOMMENDS that this action be
DISMISSED.
V. PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report and Recommendation, file and serve on all parties written
objections to those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A District Judge of this Court shall make
a de novo determination of those portions of the Report and Recommendation or specified
proposed findings or recommendations to which objection is made. Upon proper objections, a
District Judge of this Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence, or may recommit this matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review it de novo,
and also operates as a waiver of the right to appeal the decision of the District Court adopting the
Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).
IT IS SO ORDERED.
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE